Johnson v. Commonwealth

• Decision Date: 17 March 1904
• Citation: Johnson v. Commonwealth, 102 Va. 927, 46 S.E. 789 (1904)
• Parties: JOHNSON . v. COMMONWEALTH.
• Court: Virginia Supreme Court

46 S.E. 789

102 Va. 927

JOHNSON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 17, 1904.

CRIMINAL, LAW—VERDICT—FORGERY — UTTERING FORGED INSTRUMENT—INDICTMENT —SEPARATE OFFENSES.

1. When the verdict is silent as to any of the counts in the indictment, it operates an acquittal on those counts.

2. Forgery and uttering a forged instrument are, by section 3737, Code 1887, separate offenses.

3. Where separate offenses are charged by the different counts of an indictment, the jury may find the accused guilty upon each count, and ascertain the punishment separately, but the better practice is to find a general verdict for the two cognate offenses.

4. Other writings of the accused and of the party whose writing is claimed to have been forged, which are shown to be genuine, and enlarged photographs thereof, are admissible for the purpose of comparing, by expert testimony, the genuine handwritings with the handwriting of the alleged forged instrument.

5. Under section 3388, Code 1887, the jury may carry from the bar papers used in evidence.

6. An instruction should not be given where there is no evidence to support it.

7. Section 4025, Code 1887, as amended by Acts 1893-94, p. 223, c. 211, permitting the jury not to be kept together during a trial where the punishment cannot be confinement in the penitentiary for more than 10 years, does not apply where an accused is tried upon an indictment charging two separate offenses, the aggregate punishment of which can be confinement for more than 10 years, and in such case the jury must be kept together.

Error to Hustings Court of Portsmouth.

C. C. Johnson was convicted of forging and uttering a writing purporting to be the last will of his wife, and brings error. Reversed.

Bland & Hope and John W. Happer, for plaintiff in error.

The Attorney General and John S. Eggleston, for the Commonwealth.

HARRISON, J. The accused was convicted of two offenses: (1) For forging and (2) for uttering a writing purporting to be the last will and testament of his deceased wife. In their verdict, the jury fixed the punishment at two years in the penitentiary for each offense.

The court is of opinion that there was no error in overruling the demurrer to the second and third counts of the indictment. If the first count was insufficient, as claimed— as to which we express no opinion—the failure to sustain the demurrer thereto resulted in no prejudice to the accused, as the jury only found him guilty upon the second and third counts. Nor was it necessary, when the jury found a verdict of guilty on the second and third counts, for the court to enter a judgment of acquittal upon the first count, for, when the verdict is silent as to any ofthe counts in the indictment, it operates an acquittal on those counts. Hawley v. Commonwealth, 75 Va. 850.

The court is further of opinion that it was not error to overrule the prisoner's motion in arrest of judgment. The ground of this motion was that the two counts—one for forging and the other for uttering the will—constituted one and the same offense, and that the verdict of guilty under each, fixing a punishment for the offense charged in each count, was convicting the prisoner twice for the same offense. This position is not tenable. The second count charged the prisoner with forging the will. The third count charged him with uttering the same. The statute (section 3737, Code 1887) prescribes as the penalty for forgery not less than two nor more than ten years in the penitentiary. The same section prescribes the same punishment for uttering a forged paper, knowing it to be forged. The verdict of the jury was as follows: "We, the jury, find the prisoner, C. C. Johnson, guilty as charged in the second count of this indictment, and fix his punishment thereon at two years in the penitentiary; and we, the jury, further find the prisoner, C. C. Johnson, guilty as charged in the third count of this indictment, and fix his punishment thereon at two years in the penitentiary." The judgment of the court was in accordance with the verdict, fixing the term of imprisonment at two years for the offense charged in the second count, and at two years for the offense charged in the third count: the latter punishment to commence at the termination of the term of confinement ascertained for the offense charged in the second count

It is well settled that forging and uttering are separate and distinct offenses. Indeed, the statute makes them separate and distinct It is equally well settled that each of these offenses may be...